Enforcing the ADA:

A Status Report from the Department of Justice

January - March 2006

This Status Report covers the ADA activities of the Department of Justice during the first quarter (January - March) of 2006. This report, previous status reports, and a wide range of other ADA information are available through the Department’s ADA Home Page at www.ada.gov.

The Americans with Disabilities Act (ADA) is a comprehensive civil rights law for people with disabilities. The Department of Justice enforces the ADA's requirements in three areas --

Title I: Employment practices by units of State and local government

Title II: Programs, services, and activities of State and local government

Title III: Public accommodations and commercial facilities

I. Enforcement

Through lawsuits and both formal and informal settlement agreements, the Department has achieved greater access for individuals with disabilities in thousands of cases. Under general rules governing lawsuits brought by the Federal Government, the Department of Justice may not file a lawsuit unless it has first unsuccessfully attempted to settle the dispute through negotiations.

A. Litigation

The Department may file lawsuits in Federal court to enforce the ADA and may obtain court orders including compensatory damages and back pay to remedy discrimination. Under title III the Department may also obtain civil penalties of up to $55,000 for the first violation and $110,000 for any subsequent violation.

1. Decisions

Supreme Court Upholds Title II Suit Against State Prison -- The Supreme Court ruled unanimously in U.S. v. Georgia that a Georgia prisoner could proceed with his title II suit for damages against the State to the extent that the title II claim is based on conduct that “actually violates” the Constitution. The Department intervened in this case to defend the constitutionality of ADA title II suits against State agencies. The plaintiff, who has paraplegia and uses a wheelchair, alleged that his cell was too small for him to maneuver his wheelchair, making it impossible for him to access his bed, toilet, and shower without assistance, and that assistance was often denied. He also claimed that the prison’s barriers prevented him from using the prison library, attending religious services, and participating in a wide range of counseling, education, and vocational training programs. The Supreme Court accepted the Eleventh Circuit’s ruling that the plaintiff’s allegations regarding his inability to move about his cell (and his restraint there for 23 out of 24 hours each day), the refusal of prison officials to assist him with toileting in these circumstances, and the prison staff’s deliberate indifference to his medical condition constituted allegations of actual violations of the Eighth Amendment, which bars “cruel and unusual punishment.” The State did not dispute, and the Court found “quite plausible,” that this alleged conduct also violated title II. The Court found, however, that the plaintiffdid not precisely identify (for the wide range of allegations in his complaint) the alleged conduct that was the basis for particular title II claims. Because of this lack of precision, the court concluded that it was impossible to determine if any of the title II claims were based on conduct that did not violate the Constitution. Therefore, the Court refrained from deciding at this time the broader question of the extent to which lawsuits may be brought against States challenging conduct that violates title II but not the Constitution. The Court remanded the case to the district court to give the plaintiff the opportunity to amend his complaint to identify clearly the alleged conduct underlying each of his claims.

District Court Orders Accessibility in AMC Stadium-Style Movie Theaters -- The U.S. District Court for the Central District of California approved an order proposed by the Department in U.S. v. AMC Entertainment, Inc., requiring far reaching measures to ensure the accessibility of the cinema chain’s stadium-style movie theaters. In an earlier ruling, the court had found AMC in violation of the ADA for failing to locate wheelchair and companion seating in the stadium sections of its stadium-style movie theaters. When the parties could not reach a negotiated agreement on the specific measures needed to ensure accessibility, the Department asked the court to approve its proposed remedies. The order requires AMC to make modifications in nearly 1,200 noncompliant stadium-style auditoriums nationwide, including building ramps in about 350 of these auditoriums; ensure that any stadium-style theater built by AMC over the next five years conforms to specified new construction design standards; pay $200,000 in total monetary relief to complainants; and pay a total of $100,000 in civil penalties. AMC has appealed the order to the U.S. Court of Appeals for the Ninth Circuit.

Ninth Circuit Returns Transit Regulation Challenge to District Court -- The U.S. Court of Appeals for the Ninth Circuit in George v. BART overturned a district court’s ruling invalidating the Department of Transportation’s ADA regulations for accessible routes in transit facilities. The Department had filed an amicus brief in the Ninth Circuit defending the U.S. Department of Transportation’s regulations implementing title II of the ADA in public transportation. Plaintiffs filed suit against the Bay Area Rapid Transit District (BART) alleging that public entrances at four BART stations were inaccessible to persons who are blind or who have low vision. The U.S. District Court for the Northern District of California ruled that the DOT regulations, as applied to accessible routes, were invalid because they were not adequate to ensure that the required accessible route would be accessible to individuals who are blind or who have low vision. The Department argued on appeal that the DOT regulations were a reasonable interpretation of the ADA because the government carefully considered the needs of people who are blind or who have low vision and issued rules that, taken as a whole, address the obligation of public transportation facilities to provide access to these individuals. The Ninth Circuit vacated the district court’s ruling and returned the case to that court for further review with instructions to include the United States as a party.

2. Consent Decrees

Some litigation is resolved at the time the suit is filed or afterwards by means of a negotiated consent decree. Consent decrees are monitored and enforced by the Federal court in which they are entered.

Title I

U.S. v. Marion County Nursing Home, Inc. -- The Department filed, and resolved by consent decree, a lawsuit in the U.S. District Court for the Eastern District of Missouri, against a nursing home that allegedly terminated a nurse’s aide when it learned that she had HIV disease. The aide performed tasks, such as bathing, grooming, feeding, and general care of patients, that did not involve any invasive procedures. The agreement provides that the nursing home will not discriminate on the basis of disability, including HIV, and will conduct an individualized assessment of whether individuals are qualified for a job. The nursing home also agreed to pay the charging party $25,000 in damages.

Title III

U.S. v. Kaufman Realty Corporation -- The U.S. Attorney’s Office for the Southern District of New York and Kaufman Realty Corporation agreed to a consent decree resolving an allegation of disability discrimination in commercial leasing. The complaint alleged that Kaufman refused to lease space to Sinergia, Inc., a nonprofit organization dedicated to serving low-income individuals with disabilities and their families, because Sinergia planned to use the space to run a day habilitation program for adults with mental retardation and developmental disabilities. Sinergia’s day habilitation program assists in the development of social, recreational, vocational, and employment skills. According to the complaint, after Sinergia expressed its interest in leasing available space on the second floor of the 34th Street building, and after Kaufman sent Sinergia a draft of a lease for that space, an existing tenant in the 34th Street building objected to Sinergia’s tenancy because of the use Sinergia intended to make of the space. The complaint also alleged that, shortly after being notified of the existing tenant’s objection, Kaufman informed Sinergia that it would not lease the space to Sinergia if Sinergia used any part of the space to operate its day habilitation program. Kaufman allegedly advised Sinergia that it would lease the space to Sinergia only if Sinergia agreed to use the space exclusively for its administrative offices. As a result of Kaufman’s actions, the complaint alleged, Sinergia was forced to seek alternative space elsewhere and ultimately accepted less desirable space in another building. Under the consent decree Kaufman agreed not to discriminate on the basis of disability in commercial leasing and to pay $175,000 in compensatory damages to Sinergia.

B. Formal Settlement Agreements

The Department sometimes resolves cases without filing a lawsuit by means of formal written settlement agreements.

Title II

Project Civic Access Agreements Signed by Two More Communities -- The Department has signed two additional agreements under Project Civic Access, a nationwide effort to ensure that cities, counties, towns, and villages throughout the United States comply with the ADA. The new agreements are with --

• Daviess County Public Library District, Owensboro, Kentucky; and

• Arlington County, Virginia

The goal of Project Civic Access is to ensure that people with disabilities have an equal opportunity to participate in civic life. Departmental investigators, attorneys, and architects survey State and local government facilities and programs across the country for the purpose of identifying modifications needed to comply with ADA requirements. Depending on the circumstances in each community, the agreements address specific areas where access can be improved. To date, 145 Project Civic Access agreements have been signed with 138 communities. Each community agreed to take specific steps, depending on local circumstances, to make core government functions more accessible to people with disabilities. The agreements have improved access to many aspects of civic life including, courthouses, libraries, parks, sidewalks, and other facilities, and address a wide range of accessibility issues, such as employment, voting, law enforcement activities, and emergency preparedness and response.

The Daviess County Public Library District
The District agreed to submit for review by the Department of Justice architectural plans for the new Daviess County Public Library scheduled to be constructed in 2006; ensure that the library’s web pages are accessible; notify the public of its policy not to discriminate against individuals with disabilities; identify sources of real-time transcription services and vendors that can put documents in Braille; ensure that all appropriate employees are trained in using the Kentucky relay service; and modify its employment policies to provide that the library will maintain any employee medical records in a confidential manner, separate from personnel files.

Arlington County
The county agreed to remove architectural barriers in its facilities, including numerous parks and recreation facilities, libraries, community centers, the courthouse, the homeless shelter, a nature center, the animal shelter, the visitors center, and the building that houses the department of human services. Additionally, the County agreed to modify its emergency management and disaster prevention policies, website, sidewalks and sidewalk maintenance program to ensure that persons with disabilities have equal access to these programs and services.

Title III

Huntsville Speedway, Huntsville, Alabama -- The Department entered into a settlement agreement with the past and current owners of Huntsville Speedway resolving complaints that the race track lacked accessible parking, toilet rooms, and spectator seating. Under the settlement, the current owner of Huntsville Speedway will make physical modifications to Huntsville Speedway so that parking, ticket counters, toilet rooms for spectators and racers, spectator seating, and routes to spectator seating are accessible to people with disabilities. It will also provide waiter or waitress service for patrons seated in wheelchair accessible seating locations during all scheduled events. In addition, the former owner of Huntsville Speedway will pay a total of $6,250 in monetary relief to the two complainants.

McDonald’s Restaurant, Huntsville, Alabama -- The Department reached an agreement with Johnson Enterprises, LLC, the owner of a McDonald’s Restaurant in Huntsville, Alabama, resolving a complaint by an individual alleging that he was refused service because he was accompanied by his service animal. The owner agreed to provide its employees with a written copy of its service animal policy, place a “service animals welcome” sign in its restaurant, provide training to its employees on the ADA and its service animal policy, and pay the complainant $250 in damages.

Automated Petroleum and Energy Company, Inc., Brandon, Florida -- The Department entered an agreement with Automated Petroleum and Energy Company, Inc., the owner and operator of three Florida gasoline service stations with convenience stores -- Ocala Chevron Station, Inverness Chevron Station, and Dade City CITCO Station-- resolving complaints that the company failed to remove architectural barriers. The company agreed to a wide variety of measures; including adding van-accessible spaces; reconfiguring entrances; rearranging furniture to provide accessible aisles; and providing accessible restrooms by widening doorways, adjusting the height of lavatories, installing accessible hardware, adjusting the height of dispensers, and installing grab bars.

Largest Pizza Hut Franchisee Agrees to Nationwide Accessibility -- The Department signed an agreement with NPC International Inc. that will make NPC’s Pizza Hut restaurants accessible nationwide to people with disabilities. NPC, which operates approximately 800 Pizza Hut restaurants in 25 states, is the largest single franchisee of Pizza Hut restaurants in the United States. Whether existing, altered, or newly constructed, these restaurants will have the following accessible features at a minimum:

Parking areas will have two accessible parking spaces, including one accessible to vans. They will be on the shortest accessible route to an accessible entrance and marked with appropriate signage.

An accessible entrance will connect to all accessible spaces within the site through an accessible route that is free of obstructions. The doors will not be too heavy and will have hardware that is easy to operate.

Dining, food service, and customer service areas will include at least one accessible table or booth, an accessible counter surface or check-writing area where payment is made, and signs stating that service will be provided upon request (for example, where self-service food areas are difficult to reach or manage) to customers with disabilities.

Public rest rooms will be accessible. Either accessible stalls in multistall rest rooms or accessible unisex rest rooms will be provided unless the Department and NPC agree (under specific terms in the agreement) that is it not reasonable or feasible to do so. The accessible rest rooms will have grab bars, a lavatory that can be operated easily, and other accessibility features.

In addition, NPC will survey and evaluate all NPC-owned facilities that were subject to the ADA’s new construction or alterations standards at the time of their construction or alteration and bring them into compliance with the standards that were in effect at the time. At the 180 NPC-operated outlets that are dedicated solely to delivery and carry-out, that have no in-restaurant dining, and that are owned by a party other than NPC, NPC will make its best efforts to work with landlords to ensure accessibility. NPC will also build all future facilities in compliance with ADA Standards for Accessible Design, designate a compliance officer, and train all personnel involved in implementing the agreement.

City Cab Company, Crestview, Florida -- The Department signed an agreement with City Cab resolving a complaint alleging that the taxi provider denied services to a blind passenger because the passenger was accompanied by a service animal. City Cab agreed to adopt a policy requiring all drivers to transport individuals accompanied by service animals and to provide the complainant with complimentary taxi services for a period of one year.

C. Other Settlements

The Department resolves numerous cases without litigation or a formal settlement agreement. In some instances, the public accommodation, commercial facility, or State or local government promptly agrees to take the necessary actions to achieve compliance. In others, extensive negotiations are required. Following are some examples of what has been accomplished through informal settlements.

Title II

An inmate who uses a power wheelchair complained that the California state correctional facility lost his wheelchair. The facility agreed to replace the wheelchair.

An inmate who has difficulty standing for long periods complained that a Utah prison facility would not provide him with a shower chair. The facility agreed to provide a shower chair.

Title III

An individual who uses a service animal complained that a Florida sports bar refused to allow him into the facility with his service animal. The bar owner agreed to post a service animal policy and to confirm publicly that persons accompanied by service animals are welcome at the sports bar.

An individual who uses a service animal complained that an Alabama grocery store refused to serve her while accompanied by her service dog. The grocery store, part of a regional grocery store chain, agreed to train its employees on the requirements of the ADA. In addition, the facility agreed to return photographs of the complainant with her service animal taken by store employees.

The U.S. Attorneys obtained informal settlements in the following cases --

District of Arizona -- An individual with a disability complained about a restaurant’s inaccessibility. The restaurant agreed to make several changes, including installing a van-accessible parking space and an accessible ramp at the entrance, changing the door threshold leading to a patio/concert area, providing at least one table in each area, and making modifications to the toilet room.

A person with a mobility impairment complained that a fitness club did not provide access to its swimming pool. The club had a pool lift, but it was stored in a closet. The club agreed to permanently install the lift at pool side and to brief all employees on the club’s accessibility features.

A individual who is deaf complained that an Arizona municipal court denied his request for a stenographic interpreter during an upcoming civil trial. The court agreed to reschedule the trial and provide real time captioning. In addition, the court will remind all its judges about its effective communication policies, including what aids and services are available for use in the courtroom and how to handle requests for auxiliary aids and services.

A individual who is deaf complained that a doctor’s office failed to provide a qualified sign language interpreter for appointments. The doctor tried to communicate by exchanging written notes with the patient, and also attempted to have one of his office staff who knew sign language interpret, but neither method was effective. The doctor’s office agreed to establish a written policy regarding the provision of auxiliary aids and services, including sign language interpreters.

District of Connecticut -- A plan review and site visit for the proposed construction of a convention center revealed several violations of the ADA Standards for Accessible Design, including too few van-accessible parking spaces; insufficient space in toilet rooms; missing or incorrectly mounted toilet grab bars; mirrors, paper towel holders, and other bathroom fixtures mounted at the wrong height; failure to insulate lavatory hot water pipes; and an overhead hazard created by the open escalator design. The State agreed to make the changes needed to comply with the ADA Standards.

A plan review and site visit for the proposed construction of a hotel revealed a number of violations of the ADA Standards, including problems with the accessibility of bathrooms, kitchen facilities, and closets in the presidential and vice-presidential suites. The hotel agreed to make its suites fully accessible.

Southern District of Iowa -- The deaf parents of a juvenile complained that an Iowa county court services office refused to provide effective communication services to them. Their child, who is able to hear, was required to interpret for his parents during his juvenile delinquency intake meeting, a meeting required to determine whether the child would be referred to juvenile court. The State agreed to prepare and implement an effective communication policy for juvenile court services statewide.

District of Minnesota -- An individual with a disability complained about a lack of accessible toilet rooms at a flea market. The flea market, which only provides portable toilets, agreed to obtain an accessible portable toilet and place it on an accessible route.

Southern District of New York -- An individual with a disability who uses a service animal complained that she was denied access to the subway when a transit authority officer required her to produce written certification that her animal was a service animal. The transit authority has revised its policy to accept credible verbal assurances, including an oral description of tasks that the animal performs, to verify that the animal is a service animal.

II. Mediation

Under a contract with the Department of Justice, The Key Bridge Foundation receives referrals of complaints under titles II and III for mediation by professional mediators who have been trained in the legal requirements of the ADA. An increasing number of people with disabilities and disability rights organizations are specifically requesting the Department to refer their complaints to mediation. More than 400 professional mediators are available nationwide to mediate ADA cases. Over 75 percent of the cases in which mediation has been completed have been successfully resolved. Following are recent examples of results reached through mediation.

In Georgia, a person who is deaf complained that a regional medical facility that provides services for individuals who are HIV-positive failed to provide an interpreter. The facility agreed to provide sign language interpreters for all appointments and to give patients a choice of interpreters due to the sensitive nature of the visits. The facility will also provide disability-related sensitivity training for all staff, post information about a patient’s right to an interpreter, and evaluate the provision of interpreters on an on-going basis.

In Pennsylvania, a wheelchair user A wheelchair user complained that a New Jersey bank was inaccessible because it had seven steps at the entrance. The bank reconstructed the front of the building to provide access to the lobby and installed two van-accessible parking spaces in its parking lot.

A wheelchair user complained that the check-out aisles of a Georgia grocery store were not accessible and that store employees refused to assist him when he was unable to use the check-out aisle. The grocery store made all check-out aisles accessible, and the complainant agreed to participate in quarterly staff meetings to provide disability sensitivity training to employees.

In California, a wheelchair user complained that a local grocery store’s accessible checkout aisle was not staffed and no other checkouts were accessible. The store made all checkout aisles accessible and added an ADA component to personnel training. The complainant will work with the grocery store to provide input and information on serving customers with disabilities.

An individual with hemiplegia alleged that he was refused service by an Arizona nail salon. After reviewing the Department of Justice’s technical assistance material in Vietnamese, which is his native language, the owner changed his policies with regard to serving individuals with disabilities. The salon owner formally apologized and paid the complainant $1,000.

In California, an individual alleged that, because he now uses a wheelchair, he can no longer dine at one of his favorite restaurants because the bathrooms are inaccessible. The restaurant agreed to remove barriers throughout the restaurant within four months of the mediation and to provide the complainant a free meal for each day beyond the deadline that the renovations are not completed. The restaurant further agreed to give the complainant and his wife a “special dining experience” at the newly renovated restaurant.

In Georgia, an individual with a mobility disability alleged that a mall failed to provide adequate accessible parking. The mall added four additional accessible spaces, including access aisles and signage.

An individual with a mobility disability alleged that a California restaurant roped off its accessible parking during its annual antique car show. The complainant also stated that he was treated poorly when he attempted to speak to someone about the accessible spaces. The restaurant has developed a policy to ensure that the accessible spaces are available, and the complainant received a written apology and compensation in the amount of $1,000.

In Arizona, a wheelchair user complained that a hotel did not have an accessible route to the pool area. The hotel installed a wheelchair lift to provide access.

In South Carolina, a person who is deaf complained that a hospital did not provide an interpreter. The hospital agreed to provide interpreters upon request and to have ongoing staff training concerning deaf culture, hospital policies governing effective communication, and implementation of those policies.

A person with a mobility disability complained that a North Dakota restaurant did not provide accessible seating in a nonsmoking location. The restaurant agreed to create an accessible nonsmoking dining area, implement a reservation system for accessible tables, and provide staff training on the ADA.

In California, a woman with a mobility disability complained that staff at a restaurant requested documentation for her service animal and treated her rudely. The restaurant reaffirmed its ongoing commitment to provide access to service animal users, agreed to train its employees on this policy, and to compensate the complainant with $750 and an additional $100 in gift certificates.

A wheelchair user complained that a van-accessible parking space in an Oregon shopping center was inaccessible due to its slope. The shopping center agreed to relocate the accessible parking to provide a level surface and to add three additional van-accessible spaces, even though only one was required.

III. Technical Assistance

The ADA requires the Department of Justice to provide technical assistance to businesses, State and local governments, and individuals with rights or responsibilities under the law. The Department provides education and technical assistance through a variety of means to encourage voluntary compliance. Our activities include providing direct technical assistance and guidance to the public through our ADA Website, ADA Information Line, and ADA Fax on Demand; developing and disseminating technical assistance materials to the public; undertaking outreach initiatives; and coordinating ADA technical assistance government wide.

ADA Website

The Department's ADA Website on the Internet's World Wide Web provides direct access at anytime to ADA information offered by the Department and by other Federal agencies.

The ADA Home Page (www.ada.gov) is the entry point to the website. It provides direct access to --

ADA regulations and technical assistance materials in English and Spanish (which may be viewed online or downloaded for later use),

electronic versions of the ADA Standards for Accessible Design, including illustrations and hyperlinked cross-references,

the ADA Business Connection, including ADA Business Briefs in English and Spanish,

Reaching Out to Customers With Disabilities, a web-based interactive online course that explains the requirements of title III,

the ADA Video Gallery with accessible streaming video, including Ten Small Business Mistakes and the ADA Signing Ceremony,

an online ordering form for the ADA Technical Assistance CD-ROM,

links to the Department's press releases, and

links to Internet web pages of other Federal agencies and Federal grantees that contain ADA information.

The ADA Website also provides information about --

the toll-free ADA Information Line,

the Department's ADA enforcement activities,

the ADA technical assistance program,

certification of State and local building codes,

proposed changes in ADA regulations and requirements, and

the ADA mediation program.

ADA Information Line

The Department of Justice operates a toll-free ADA Information Line to provide information and publications to the public about the requirements of the ADA. Automated service, which allows callers to order publications by mail or fax, is available 24 hours a day, seven days a week. ADA specialists are available on Monday, Tuesday, Wednesday, and Friday from 9:30 a.m. until 5:30 p.m. and on Thursday from 12:30 p.m. until 5:30 p.m. (Eastern Time). Foreign language service is also available.

To obtain general ADA information, get answers to technical questions, order free ADA materials, or ask about filing a complaint, please call:

800-514-0301 (voice)
800-514-0383 (TTY)

ADA Fax On Demand

The ADA Information Line Fax Delivery Service allows the public to obtain free ADA information by fax 24 hours a day, seven days a week. By calling the number above and following the directions, callers can select from among 34 different ADA technical assistance publications and receive the information, usually within minutes, directly on their fax machines or computer fax/modems. A list of available documents and their code numbers may also be ordered through the ADA Information Line.

Publications and Documents

Copies of the Department's ADA regulations and publications, including the Technical Assistance Manuals for titles II and III, can be obtained by calling the ADA Information Line, visiting the ADA Home Page, or writing to the address listed below. All materials are available in standard print as well as largeprint, Braille, audiotape, or computer disk for persons with disabilities.

Currently, the FOIA/PA Branch maintains approximately 10,000 pages of ADA material. The records are available at a cost of $0.10 per page (first 100 pages free). Please make your requests as specific as possible in order to minimize your costs.

The FOIA/PA Branch also provides access to ADA materials on the World Wide Web (www.usdoj.gov). A link to search or visit this website is provided from the ADA Home Page.

IV. Other Sources of ADA Information

The Equal Employment Opportunity Commission offers technical assistance to the public concerning the employment provisions of title I of the ADA.

The ADA and IT Technical Assistance Centers are funded by the U.S. Department of Education through the National Institute on Disability and Rehabilitation Research (NIDRR) in ten regions of the country to provide resources and technical assistance on the ADA.

The Job Accommodation Network (JAN) is a free telephone consulting service funded by the U.S. Department of Labor. It provides information and advice to employers and people with disabilities on reasonable accommodation in the workplace.

Complaints about violations of title I (employment) by units of State and local government or by private employers should be filed with the Equal Employment Opportunity Commission. Call 800-669-4000 (voice) or 800-669-6820 (TTY) to reach the field office in your area.

Titles II and III

Complaints about violations of title II by units of State and local government or violations of title III by public accommodations and commercial facilities should be filed with --